Social Platforms Can Be Forced To Host Lawful Speech, Texas AG Tells Court

Texas Attorney General Ken Paxton is urging a federal appellate court to allow enforcement of a new law that prohibits Facebook, YouTube and Twitter from suppressing posts based on the point of view expressed.

In papers filed this week with the 5th Circuit Court of Appeals, Paxton argues that large social media companies should be considered “common carriers” -- comparable to companies that provide telephone service, electricity and other utilities -- and therefore have no right to suppress users' posts.

“Even if the platforms have a First Amendment right at stake, they are analogous to common carriers and may be required to neutrally host content,” Paxton writes.

“Texas has a compelling interest in preserving its residents’ ability to communicate on these modern-day equivalents of yesteryear’s communications common carriers,” he adds.

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He is seeking to lift a block on HB 20, a bill signed by Governor Greg Abbott in September. The law allows large social platforms (meaning at least 50 million monthly users) to remove illegal content, but prohibits them from suppressing lawful speech based on viewpoint -- even if the speech is objectionable. Lawmakers who passed the bill rejected an amendment that would have explicitly allowed the companies to remove vaccine misinformation failed, as well as an amendment that would have explicitly allowed companies to take down posts denying the Holocaust.

Earlier this month, U.S. District Court Judge Robert Pitman in Austin said the law violates the First Amendment and prohibited enforcement of the measure. Pitman also specifically rejected the state's claims that online social media platforms are “common carriers.”

Paxton is now asking the 5th Circuit to reverse Pitman's ruling.

“The platforms have made billions of dollars based on their ability to host information of their users,” Paxton writes. “Texas may forbid them from using that dominance to put forth their own agenda to the exclusion of all other ideas.”

The Texas law, like a similar Florida measure that was also blocked by a judge, was driven by state Republicans' belief that social media companies are particularly likely to suppress right-wing views -- despite a lack of empirical evidence.

“In Texas we will always fight for your freedom of speech,” Abbott said when he signed the Texas bill. “It is now a law that conservative viewpoints in Texas cannot be banned on social media.”

Researchers who have studied content moderation dispute that the platforms disproportionately suppress conservative viewpoints.

Earlier this year, New York University’s Stern Center for Business and Human Rights concluded in a report that social media companies don't systematically discriminate against users or content. The researchers reported that social media platforms “have amplified right-leaning voices algorithmically to reach unprecedented audiences, often affording conservatives greater reach than liberal or nonpartisan content creators.”

As far back as 2018, New York Law School professor Ari Waldman told Congress there's no proof web companies disproportinately filter out right-wing speech.

"When victims of racist, homophobic, and sexist tweets and comments post those comments to call out the aggressors, it is often the victims that are suspended or banned," he testified to Congress. "Activists associated with the Black Lives Matter movement have reported just as many if not more take downs of images discussing racism and police brutality than any of the anecdotal evidence of suspensions or take downs on the right.

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